Doody v. Boston & M. R. R.

• Citation: 89 A. 487,77 N.H. 161
• Court: Supreme Court of New Hampshire
• Decision Date: 06 January 1914
• Parties: DOODY v. BOSTON & M. R. R.

89 A. 487

77 N.H. 161

DOODY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

Jan. 6, 1914.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by John Doody against the Boston & Maine Railroad for personal injuries. There was a verdict for the plaintiff for $750. The defendant's motions for a nonsuit and the direction of a verdict in its favor were denied, subject to exception. Upon the plaintiff's motion, the court sustained the verdict as to liability, set it aside as to damages, and ordered a new trial upon the latter issue. To this ruling the defendant excepted.

February 10, 1912, the plaintiff was engaged in hauling a load of logs along a highway which intersects with the defendant's railroad at the place where the collision occurred which caused his injuries. On that day the defendant's train was about 40 minutes late. The plaintiff, on approaching the crossing, looked at his watch and concluded that the train had passed. He drove his team over the crossing and stopped for the purpose of putting a brake chain on his sled to check the speed of the load in descending a hill just ahead of him. It appeared that some of the logs extended toward the railroad track far enough to be hit by a passing locomotive and that the collision occurred in that way. While the plaintiff was adjusting the chain to the sled, the defendant's train passed over the crossing at a speed of 40 to 50 miles an hour. There was evidence that the plaintiff did not know of its approach and that the engineer did not sound the whistle at the whistling post as he was required to do when about to pass over a highway at grade.

Doyle & Lucier, of Nashua, for plaintiff. Charles J. Hamblett and Marshall D. Cobleigh, both of Nashua, for defendant.

WALKER, J. The defendant's motions for a nonsuit and for a verdict were properly denied. There was evidence from which the jury could find that the defendant was guilty of negligence which was the proximate cause of the plaintiff's injuries. The plaintiff and his load of logs were not in a dangerous situation at the crossing, in the absence of a moving train at that point. Acting upon the idea that the train had passed, he was engaged in attaching a brake chain to his sled and did not see or hear the train until it was upon him; but he testified that no whistle was sounded at the whistling post when the train approached, and in this he was corroborated by other witnesses. It also appears that the train was going at an excessive rate of speed, and when it got to the crossing some part of the engine struck the projecting logs and upset the load, causing the injuries complained of. Upon this brief statement of facts, it is apparent that reasonable men might find that the defendant's negligence in not sounding the whistle at the place it usually whistled was the proximate cause of the accident; that, if it had sounded, the plaintiff would have been warned of the danger and could have avoided the collision.

Whether the plaintiff exercised due care in not looking for an approaching train, whether he was justified in assuming that it had passed, and that, if it had not, he would be warned by the whistle in time to take such precautions as a prudent man would take to protect his load from a collision with the engine, whether trains were passing this point frequently or only occasionally, and whether under the circumstances he exercised that degree of care for his own safety that the law requires, were all questions of fact for the jury, upon which reasonable men might differ. It cannot be held that he was guilty of contributory negligence as a matter of law, or that the defendant was not negligent. Minot v. Railroad, 73 N. H. 317, 61 Atl. 509; Stone v. Railroad, 72 N. H. 206, 55 Atl. 359; Evans v. Railroad, 66 N. H. 194, 21 Atl. 105. It is unnecessary to consider other views of the evidence which have been argued, since it is apparent that the case was a proper one for the consideration of the jury upon the theory above suggested.

The court finds that the jury "fell into a plain mistake and failed entirely to apply the law as stated on the question of damages"; that is, they failed to award to the plaintiff compensation for the injuries he suffered in consequence of the defendant's negligence. The presiding justice also found that "no reasonable man, fully comprehending the law as stated by the court, could agree that the verdict returned was compensation for the injuries proved by the evidence." He finds, in effect, that the smallness of the verdict, in view of the admitted facts in reference to the plaintiff's injuries, shows that the jury were not guided by the rule of compensation given by the court, but by some other rule invented by themselves, or by no rule at all. The fact is thus made to appear that the jury were guilty of misconduct. That the uncontested evidence relating to the character of the plaintiff's injuries and the pain, suffering, and expense incident thereto warranted the court in coming to that conclusion cannot be doubted. The fracture of the jaw on both sides, in consequence of which there was dislocation of the jaw on both sides, the inability to properly masticate food, the loss of one or more teeth, the necessary surgical attendance at home and in a hospital where the dislocation was reduced by cutting or paring off the ends of the jawbone so that they would articulate with the sockets and allow some motion of the jaw, the reasonable expenses attending such an experience extending over several weeks, the pain and suffering, both mental and physical, due to the injuries sustained, the inability to work for a long time, and the probable effect of the accident upon the plaintiff's ability to labor in the future, are some of the elements of damages which sufficiently support the finding that $750 is an unreasonably small sum to be deemed compensation. Certain it is that this court cannot say that the finding is not supported by the uncontroverted evidence. Nor can it be held that this finding, in connection with all the circumstances attending the trial, did not authorize the conclusion that the jury entirely disregarded the instructions of the court in relation to the assessment of damages.

The matter of setting aside a verdict on the ground that it is against the evidence was considered by the court in Wendell v. Safford, 12 N. H. 171 (a leading case upon this subject), where it was said (page 178): "Where the verdict is decidedly against the weight of evidence, so that it is apparent that the jury must have misunderstood or totally disregarded the Instructions of the court thereon, or must have neglected to consider the facts, and overlooked prominent and essential points in the evidence, where it is such a verdict that 12 honest and intelligent men would not have returned it, it is the duty of the court to set it aside." This statement of the law was not intended to authorize the court to weigh the evidence, consider conflicting testimony, or pass upon the credibility of witnesses-clearly the peculiar province of the jury-but to determine in view of all the circumstances disclosed whether the jury have properly performed their duty under the instructions of the court. Lisbon v. Bath, 21 N. H. 319, 335; Gould v. White, 26 N. H. 178, 188; Ames v. Drew, 31 N. H. 475, 482; Wright v. Boynton, 37 N. H. 9, 22, 72 Am. Dec. 319; Clark v. Society, 45 N. H. 331, 333; Houston v. Clark, 50 N. H. 479, 483; Jewell v. Railway, 55 N. H. 84, 95. The inquiry in such cases is, not whether the judge acting as a juror would or would not have come to the conclusion returned by the jury in their verdict, but whether reasonable men charged with the duty of finding facts from the evidence, under the court's instructions as to the law applicable to the case, could come to that result. Lucier v. Larose, 66 N. H. 141, 20 Atl. 249; Hovey v. Brown, 59 N. H. 114; Fuller v. Bailey, 58 N. H. 71; Belknap v. Railroad, 49 N. H. 358.

In actions of tort for personal injuries, although there...